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Petitioner: BIRAD MAL SINGHVI VS Respondent: ANAND PUROHIT
Court Name: Supreme Court of India Judge(s): K. N. Singh, E. S. Venkaiaramiah Title: BIRAD MAL SINGHVI vs ANAND PUROHIT Case No.: Civil Appeal No. 574(NCE) of 1987 Date of Judgment:1988-08-02 Reported As: 1989 MLD 410 Result: Appeal allowed
JUDGMENT
JUDGMENT K.N. SINGH, J.--This appeal under Section 116-A of the Representation of the People Act, 1951 (hereinafter referred to as the Act) is directed against the judgment and order of the High Court of Rajasthan dated 18-2-1987 setting aside the election of the appellant to the State Legislative Assembly of Rajasthan from jodhpur City Assembly Constituency. 2. Election to the State Legislative Assembly of Rajasthan from the constituency No. 183 Jodhpur City was held in the year 1985, nomination papers were filed by 8-2-1985 and the date of scrutiny was 9-2-1985. In all 45 candidates filed their nominations. After scrutiny and withdrawal 21 candidates contested the election, after polling and counting of votes the appellant was declared elected having obtained majority of votes. Anand Purohit, respondent who is an elector in the Jodhpur City constituency No. 183 filed an election petition before the High Court challenging the appellant's election, on the ground that the result of election was materially affected on account of improper rejection of nomination papers of three candidates, namely, Smt. Umrao Ben, Hukmichand and Suraj Prakash Joshi. The respondent pleaded that Smt. Umrao Ben was an elector in Sardarpura Assembly Constituency, the returning officer wrongly rejected her nomination paper, without affording opportunity to her to produce a copy of the electoral roll. He further pleaded that Hukmichand, and Suraj Prakash Joshi both were more than 25 years of age on the date of their nomination, yet the returning officer rejected their nomination papers on the ground that they were not qualified to be a candidate as they were below 25 years of age. The appellant contested the election petition. He asserted that Umrao Ben had failed to file a certified copy of the relevant entry in the electoral roll of Sardarpura constituency alongwith her nomination, she further failed to produce copy of the electoral roll at the time of scrutiny and therefore the returning officer rightly
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rejected her nomination paper. As regards Hukmichand and Suraj Prakash Joshi, the appellant pleaded that none of the two candidates was present before the Returning Officer at the time of scrutiny and since the entries contained in the electoral roll indicated that they were below 25 years of age the Returning Officer rightly rejected their nomination paper. The appellant further asserted that the rejection of the three nomination papers was proper and the result of the election was not materially affected on account of the rejection of the aforesaid three nomination papers. The High Court held that the nomination paper of Smt. Umrao Ben was validly rejected as she had failed to comply with Section 33(5) of the Act inasmuch as she had failed to produce a copy of the electoral roll or a certified copy of the relevant extract relating to entry of her name in the electoral roll in Sardarpura constituency. The High Court further held that nomination papers of Hukmichand and Suraj Prakash Joshi had been rejected improperly by the returning officer as both the candidates had attained the qualifying age of 25 years on the date of nomination. On these findings the High Court set aside the appellant's election by its judgment and order dated 18--2- 1987. Aggrieved by the said judgment the appellant has preferred this appeal under Section 116 of the Act. 3. The controversy in the present appeal relates to the validity of the orders of the returning officer rejecting the nomination paper of Slut. Umrao Ben, Hukmichand and Suraj Prakash Joshi. We would first examine the validity of the order of the returning officer rejecting Smt. Umrao Ben's nomination paper, which was questioned by the Respondent before us. There is no dispute that Umrao Ben was not an elector m the Jodhpur City Assembly constituency No. 183. She was an elector in Sardarpura Assembly constituency in her nomination paper she had given the details of the relevant entry contained in the electoral roll of Sardarpura Assembly constituency, but her nomination paper was not accompanied by a certified copy of the relevant entry in the electoral roll of Sardarpura constituency nor she had produced a copy of the electoral roll or the relevant part thereof before the returning officer at the time of scrutiny. Therefore the returning officer rejected her nomination paper. The High Court held that the returning officer have rightly rejected the nomination paper of Umrao Ben and there was no question of improper rejection of her nomination paper Shri G.L. Sanghi, learned counsel for the respondent challenged the correctness of the High Court's finding on this question. He urged that since the Returning Officer who was holding the scrutiny of nomination papers relating to the Jodhpur Assembly constituency was also the returning officer of Sardarpura Assembly constituency, he should have verified the entry of Umrao Ben's name from the electoral roll of Sardarpura Assembly constituency which must have been with him. He urged that Umrao Ben's request to verify entries relating to her name from the electoral roll of Sardarpura Assembly constituency was ignored by the returning officer, and further her request for grant of time to produce electoral roll was also rejected. He urged that object of Section 35 of the Act was merely to ascertain as to whether a candidate whose nomination paper was scrutinised was an elector or not and since the electoral roll of Sardarpura Assembly constituency was already with the returning officer he could have verified the entries from that electoral roll. The returning officer had acted in an unreasonable manner in refusing to do that and in rejecting her nomination paper. We find no merit in these submissions. 4. Section 33 of the Act provides for presentation of nomination paper and it further lays down the requirements of a valid nomination. Subsection (5) of the section 33 is as under: "Where the candidate is an elector of a different constituency, a copy of the electoral roll of that constituency or of the relevant part thereof or a certified copy of the relevant entries in such roll shall, unless it has been filed along with the nomination paper, be produced before the returning officer at the time of scrutiny." 5. The above provision requires a candidate who is an elector of a different constituency, to file a copy of the electoral roll of constituency or a relevant part of that roll or a certified copy of the
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relevant entries along with his nomination paper. These documents are necessary to show that the candidate is an elector of a different constituency, and he is eligible to contest the election. If it candidate is unable to comply with these requirements at the time of filing the nomination paper he is afforded another opportunity to prove his eligibility by producing a copy of the electoral roll of the constituency or the relevant part thereof or a certified copy of the relevant entries of the roll before the returning officer at the time of scrutiny. The Legislature provides two opportunities to such a candidate for proving his eligibility to contest the election, one at the stage of filing the nomination paper and the other at the stage of scrutiny. If the candidate fails to avail either of the two opportunities his nomination paper is liable to be rejected. Section 36 of the Act provides that on the date of scrutiny of nomination papers the returning officer shall examine the nomination papers and shall decide all objections which may be made to any nomination and he may either on objection or on his own motion, after holding such summary inquiry, if any, reject any nomination on the grounds specified m clauses (a), (b) and (c) of sub-section (2). Section 36(2) (b) provides for the rejection of the nomination paper on the candidate's failure to comply with any of the provisions of Section 33 or Section 34 of the Act. Section 33(5) read with Section 36(2)(b) makes it apparent that if a candidate who is an elector of a different constituency fails to prove his eligibility in the manner prescribed by Section 33(5) of the Act, his nomination paper is liable to be rejected for the non-compliance of Section 33(5) of the Act. These provisions are plain which admit of no other interpretation. Nor.-compliance with Section 33(5) is fatal to the nomination and no other mode is prescribed by the Act for proving the eligibility of the candidate. Section 33(5) prescribes a particular mode to prove eligibility of a candidate to contest election and S.36(2)(b) provides penal consequences. Therefore S.33(5) is mandatory in nature. There is no dispute that Umrao Ben failed to comply with the requirement of Section 33(5) of the Act as she had neither filed a copy of the electoral roll of the constituency or the relevant part thereof, or the certified copy of the relevant entries alongwith her nomination paper, nor she had produced any of the three documents before the returning officer at the time of scrutiny. In the circumstances the returning officer rightly rejected Umrao Ben's nomination paper. 6. Shri G.L. Sanghi, learned counsel then urged that Section 33(5) of the Act was directory and it was open to a candidate to prove his eligibility by any other mode. He urged that Umrao Ben's request to the returning officer to verify her entry from the electoral roll of Sardarpura Assembly Constituency which was in his custody (as he was the returning officer of Sardarpura Assembly Constituency also) was ignored and he refused to grant her time to produce the necessary documents. In the election petition there was no pleading that Umrao Ben had made any such request or that the returning officer had refused to grant her time. The High Court has on appreciation of evidence held that no request for time was made by Smt. Umrao Ben and no request for verifying the entry relating to her from the electoral roll of Sardarpura Assembly Constituency was made. But even assuming that the returning officer had refused to verify the relevant entries relating to Umrao Ben from the electoral roll of Sardarpura Assembly Constituency, he had acted in accordance with law. No exception could be taken to his conduct. Section 33(5) of the Act lays down a mandatory requirement for a valid nomination. The purpose of Section 33(5) of the Act is to satisfy the returning officer that the candidate is eligible to contest the election and if he fails to satisfy the returning officer in the manner prescribed by Section 33(5) of the Act, the penalty and the consequences which are specified in Section 36(2)(b) must follow. Section 33(5) is not directory instead it is mandatory in nature. An elector of a different constituency is under a mandatory duty to prove his eligibility in the manner prescribed by S.33(5) of the Act and if he fails to do that he must suffer the consequences contemplated by S.36(2)(b) of the Act. It is not open to a candidate who fails to comply with Section 33(5) of the Act to put the blame on the returning officer for the rejection of his nomination paper. The returning officer is under no legal obligation to
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make amends for the omission of a candidate, especially when the omission relates to a mandatory requirement. Apart from this legal aspect, even on facts, the Returning Officer, in his testimony before the High Court, had stated that the electoral roll of Sardarpura Assembly constituency was not with him at the time he had taken up the scrutiny of~ nomination paper of Jodhpur City constituency. The law does not enjoin the returning officer to send for the electoral roll from his officer to verify the eligibility of a candidate. The law casts a duty on the candidate to satisfy the returning officer by following one of the three modes prescribed in Section 33(5) of the Act and if he fails to do that the returning officer is bound to reject the nomination paper, he has no option in the matter. The law does not require the returning officer to send for the electoral roll of a different constituency for the purpose of verifying the eligibility of a candidate. 7. In Sri Baru Ram v. Shrimati Prasanni, 1959 SCR 1403; (AIR 1959 SC 93) this Court interpreted Section 33(5) and Section 36(2)(b) and observed as under (at p.100 of AIR): "Section 33(5) requires the candidate to supply the prescribed copy and Section 36(2)(b) provides that on his failure to comply with the said requirement his nomination paper is liable to be rejected. In other words, this is a case where the statute requires the candidate to produce the prescribed evidence and provides a penalty for his failure to do so. In such a case it is difficult to appreciate the reference or validity of the argument that the requirement of Section 33(5) is not mandatory but is directory, because the statute itself has made it clear that the failure to comply with the said requirement leads to the rejection of the nomination paper. Whenever the statute requires a particular act to be done in a particular manner and also lays down that failure to comply with the said requirement leads to a specific consequence it would be difficult to accept the argument that the failure to comply with the said requirement should lead to any other consequence." 8. Repelling the argument that failure to comply with the requirement of Section 33(5) was not a defect of substantial nature and the returning officer could be satisfied by other modes that the candidate's name was entered as an elector in another constituency, the Court held that the satisfaction of the returning officer was required to be made in accordance with the statutory requirement and if a candidate failed to comply with that requirement the returning officer could not be satisfied by any other mode. The Court further held that the failure to comply with the requirement of Section 33(5) was a defect of substantial nature which could not be ignored under Section 36(4) of the Act. The view taken in Sri Baru Ram's case (supra) has been followed in Narbada Prasad v. Chhagan Lai, (1969) 1 SCR 499: (AIR 1969 SC 395), Parmar Himatsing Jugatsingh v. Patel Harmanbhal Narsibhai, (1974) 3 SCR 453: (AIR 1974 SC 951) and Avadh Raj Singh v. Jugal ICishore Gupta, (1979) 4 SCC 328: (AIR 1979 SC 1148). Learned counsel for the respondent sought support from a Constitution Bench decision of this Court in Ranjit Singh v. Pritam Singh, (1966) 3 SCR 543: (AIR 1966 SC 1626) for his submission that failure to comply with Section 33 (5) was not a defect of substantial character. We have carefully gone through the decision but we do not find anything therein to support the respondent's contention instead it supports the view taken by us. In Ranjit Singh's case (supra) a candidate who was not an elector of the constituency had filed three nomination papers. Alongwith one of his nomination papers he had filed a copy of the electoral roll of the constituency where his name was entered as an elector, with a view to comply with the requirement of Section 33(5) of the Act. He had not filed similar copies alongwith other two nomination papers. The nomination paper with which the candidate had filed a copy of the electoral roll was rejected on the ground of some technical defect but the other two nominations were rejected on the ground that copy of the electoral roll was not filed alongwith them. This Court held that the returning officer was wrong in not looking at the copy of the electoral roll filed with one of the nomination papers. The Court further held Section 33(5) did not require that a copy must be filed with each nomination paper or that any copy should be filed at all as it was open to a candidate to produce the copy before the returning officer at the time of scrutiny. The Court held
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that the purpose of filing the copy is to ensure that the returning officer was able to check whether the candidate concerned was qualified or not and that purpose would be effectively served even if only one copy was filed with one nomination paper and no copies were filed alongwith the other nomination papers. While considering Sections 33(5) and 36(4) of the Act the Constitution Bench held that Section 33(5) required that it was the copy produced by the candidate which should show that he was qualified or not and for that purpose a copy produced by the candidate should be complete whether it was of the roll or of the relevant part thereof. To such a case Section 36(4) had no application. Section 36(4) provided that returning officer should not reject any nomination paper on the ground of any defect which was not of a substantial character. Non---production of copy of the relevant part was a defect of a substantial character for it made it impossible to decide whether the candidate was qualified or not. Since qualification for contesting election was a matter of substantial character, the failure to produce a copy of the electoral roll which was incomplete was a defect of a substantial character it would invalidate the nomination paper. In this view we agree with the High Court that there had been no improper rejection of the n Umrao Ben's nomination paper, as the accidental circumstance that the returning officer was also the returning officer of the other constituency should not make any difference. 9. As regards the rejection of the nomination papers of Hukmi Chand and Suraj Prakash Joshi the High Court has held that none of the; two candidates was present before the Returning Officer at the time of scrutiny nor any person on their behalf was present. In his nomination paper Ex. 2 Hukmi Chand had given a declaration that he had completed 26 years of age while Suraj Prakash Joshi had given declaration in his nomination paper Ex. 2 that he had completed 25 years of age. At the time of scrutiny papers by any party and none appeared on behalf of the aforesaid two candidates. The Returning Officer found that according to the entries in the electoral roll the age of Hukmi Chand was 23 years, similarly in the case of Suraj Prakash Joshi the entry in the electoral roll indicated that on the relevant date his age was 22 years. On the basis of the entries contained in the electoral roll the returning officer held that the two candidates did not possess the requisite qualification of age as required by Article 173 of the Constitution to contest the election. Accordingly he rejected both the nomination papers. Before the High Court a controversy was raised as to whether the two candidates were present at the time of scrutiny but on the evidence on record the High Record has held that neither of the two candidates nor anybody on their behalf was present at the time of scrutiny. Placing reliance on the oral and documentary evidence produced by the respondent the High Court. Has recorded findings that Hukmichand as well as Suraj Prakash Joshi both had attained the age of 25 years on the relevant date 1-1-1984 and their nomination papers had been rejected improperly by the Returning Officer, which materially affected the result of the election. 10. Dr. Chitale learned counsel for the appellant urged that on the admitted facts and circumstances the Returning Officer could not be held to have acted improperly in rejecting the nomination papers of Hukmi Chand and Suraj Prakash Joshi. He urged that since at the time of the scrutiny neither of the two candidates nor their proposer nor anybody else appeared before the returning officer, or placed any material before him showing that either of the two candidates was qualified to contest the election having attained the age of more than 25 years, the returning officer had no option but to rely on the entries contained in the electoral roll and therefore the rejection of the nomination papers of Hukmi Chand and Suraj Prakash Joshi could not be said to be improper. Learned counsel further urged that if the returning officer did not act improperly in rejecting the nomination papers of the aforesaid candidates, appellant's election could not be set aside on the basis of fresh or additional material placed before the High Court. Section 36 provides that on the date fixed for the scrutiny of nomination papers, the candidate, his election agent, proposer or any other person duly authorised in writing by the candidate may attend the
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proceedings at the time and place fixed for scrutiny. The returning officer is required to give them all reasonable facilities for examining the nomination papers of all the candidates. Section 36(2) required the returning officer to examine the nomination papers and to decide all objections which may be made to any nomination. He may, either on such objection or on his own motion, after such summary inquiry, if any, as he may think necessary, reject any nomination on any of the grounds specified under clauses (a), (b) and (c). Clause (d) empowers the returning officer to reject nomination paper of a candidate if on the date fixed for the scrutiny of the nomination the candidate is not qualified or is disqualified for being chosen to fill the seat under any of the provisions of Articles 84, 102, 173 and 191 of the Constitution. Article 173 lays down constitutional qualification for being a Member of the State Legislature, according to which a person is not qualified to be chosen to fill a seat in the Legislature of a State unless he is not less than 25 years of age. During the scrutiny the Returning Officer is under a statutory duty to satisfy himself that the candidate who may have filed nomination paper possesses the necessary constitutional qualification for contesting the election. In the instant case none of the two candidates appeared nor anybody on their behalf appeared or placed any material before the returning officer to show that the candidates were not less than 25 years of age on the date of scrutiny 1-1---1984. No doubt in the nomination papers both the candidates had made a declaration that they were not less than 25 years of age but entries pertaining to them in the electoral roll clearly indicated that they were less than 25 years of age. The returning officer placing reliance on the entries contained in the public document i.e. The electoral roll, rejected the nomination papers of the two candidates on the ground that Hukmi Chand and Suraj Prakash Joshi were not qualified to contest the election. In the absence of any material before the returning officer, the returning officer was not wrong in taking the entries in the electoral roll into consideration and acting on them. But his decision is not final. In an election petition it is open to an election petitioner to place cogent evidence before the High Court to show that the candidate whose nomination paper was rejected had in fact attained the age of 25 years on the relevant date It is open to the High Court to take a final decision in the matter notwithstanding the order of the returning officer rejecting the nomination paper. If on the basis of the material placed before the High Court it is proved that the candidate whose nomination paper had been rejected was qualified to contest the election it is open to the High Court to set aside the election. Enquiry during scrutiny is summary in nature as there is no scope for any elaborate enquiry at that stage. Therefore it is open to a party to place fresh or additional material before the High Court to show that the Returning Officer's order rejecting the nomination paper was improper. It should be borne in mind that the proceedings in an election petition are not in the nature of appeal against the order of the returning officer. It is an original proceeding. In the instant case it was open to the respondent election petitioner to place material before the High Court to show that the two candidates were qualified and their nomination paper was improperly rejected. 11. The question then arises whether the respondent has proved in accordance with law that Hukmi Chand and Sural Parkash Joshi whose nomination papers were rejected by the Returning Officer had attained the age of 25 years on 1-1-1984. In the election petition the respondent pleaded that Hukmi Chand's nomination paper was improperly rejected on the basis of entry in the electoral roll which mentioned his age as 23 years while his correct date of birth was 13-5-1956 as evidenced by the certificate issued by the Head Master of the New Government School Jodhpur. The respondent had further pleaded that the nomination paper of Suraj Prakash Joshi was rejected on the sole ground that in the electoral roll his age was recorded as 23 years on 1-1-1984 but the entries contained…
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